On appeal from Superior Court of New Jersey, Law Division, Camden County.
Morton I. Greenberg, J. H. Coleman and Long. The majority opinion of the court was delivered by Coleman, J.h., J.A.D. Long, J.A.D., (dissenting).
[209 NJSuper Page 303] The novel issues presented in this tragic right to die case are (1) whether the hospital wrongfully delayed a decent burial of a brain dead patient, and (2) whether plaintiffs, as bystanders, established a valid claim for negligent infliction of emotional distress by the hospital for its alleged failure to have in place a procedure for discontinuing, upon request, life support systems on a brain dead patient. A jury found the hospital liable under both theories and awarded damages of $70,000 on each theory (which totals $140,000) for infliction of additional emotional distress. Defendants' motion for a new trial was denied. The hospital and its administrator have appealed. We hold that plaintiffs, as matter of law, did not establish any actionable wrongdoing under either theory of liability. We therefore reverse and enter judgment for defendants.
The present action was instituted by plaintiffs, the parents of a suicide victim. The complaint alleged that John F. Kennedy Memorial Hospital; its administrator, A. R. Pirolli; Drs. Hummel, Weinstein, Cohen, Venkat, Pinzler, Santoro; three Drs. John Doe; and the Delaware Valley Transplant Program and its representative Stephen Sammut were negligent, had committed the tort of outrage and were "responsible for grossly inappropriate handling of the dead body of Jeffrey Strachan." The alleged negligence was predicated upon the failure of the hospital to have in place procedures for withdrawing life support systems from a brain dead patient upon the request of the family. Plaintiffs sought compensatory and punitive damages. The complaint against all defendants, except for the hospital and its administrator, was dismissed prior to trial based upon the court's holding that as matter of law, there was no breach of any duty by those defendants. No appeal has been taken from that determination.
The facts essential to our determination begin with the tragic events of Friday, April 25, 1980 when 20 year old Jeffrey Strachan undertook to commit suicide. At about 4:30 p.m., he fired a .38 caliber bullet into his head. He was transported by ambulance to defendant-hospital. An examination in the emergency room at 5:00 p.m. revealed a gun shot wound to the head. X-rays showed that the bullet had entered the right parietal area and was lodged in the left temporal region. Jeffrey was comatose but still had spontaneous respiration. He was intubated by Dr. Hummel, the emergency room physician. At 5:25 p.m. there was no spontaneous respiration; both pupils were dilated and fixed and no reflexes were detected. Jeffrey was then placed on a respirator (life support systems). Based upon a clinical examination, Dr. Hummel found Jeffrey to be brain dead.
At about 8:10 p.m. that same day, Jeffrey was examined by Dr. Cohen, a neurosurgeon, who also found Jeffrey to be clinically brain dead. Dr. Cohen explained to plaintiffs that Jeffrey was brain dead and that there was not anything that could be done to restore brain function. Dr. Cohen asked plaintiffs if they would consider donating Jeffrey's organs, such as his kidneys, for transplant purposes. The plaintiffs were not in agreement on whether to donate organs. Dr. Cohen suggested that plaintiffs should go home and return the next morning with a decision. At 8:30 p.m. Jeffrey was transferred to the intensive care unit where he continued to be on the life support systems and to receive other forms of active medical care. By this time his skin was pale, but he was still warm to the touch.
Plaintiffs returned to the hospital on Saturday, April 26, 1980 at about 9:00 a.m. They informed Dr. Pinzler that they had decided not to donate any of Jeffrey's organs and that they wanted the respirator turned off. Dr. Pinzler advised them to think it over some more. The hospital records indicate that plaintiffs' request was discussed with Dr. Cohen. The hospital record does not, however, disclose the content of that conversation. At about noon, Mr. Strachan asked a nurse if the respirator was going to be turned off and she replied in the negative, stating that "nobody had ever asked to have a machine shut off." Plaintiffs left the hospital at about lunch time.
Plaintiffs returned to the hospital at about dinner time and Mr. Strachan spoke with Dr. Venkat, one of Dr. Cohen's associates. Dr. Venkat examined Jeffrey at 8:00 p.m. and agreed that he was brain dead. Mr. Strachan asked Dr. Venkat to turn off the respirator because the nurses had said that they had no power to remove the life support systems. Dr. Venkat noted in the patient's chart that "as soon as the hospital administrator tells us the procedure, we will do so." The hospital administrator was contacted by the hospital. Based on conversation with administrator Pirolli, plaintiffs were advised at about 2:00 a.m.
on Sunday, April 27, that a court order would be required before the life support systems could be disconnected.
The evidence is somewhat in conflict as to what was done by the hospital administrator in response to requests for him to outline the procedure, if any, which the hospital required physicians to follow before turning off the life support systems on a brain dead patient. Pirolli was not on duty on the Saturday afternoon and evening of April 26, 1980. Jeannette Licorice, the assistant hospital administrator and director of nursing, was on call that weekend. She was advised by the nursing supervisor that plaintiffs would not agree to donate Jeffrey's organs and that they wanted the life support systems discontinued. She was told that Jeffrey was found to be brain dead from clinical examinations but that no electroencephalogram (EEG) had been performed. Later that night she spoke with Pirolli and informed him of Jeffrey's status and that the family wanted to discontinue the life support systems. Pirolli advised her that a court order would be required because the hospital had never before received such a request. She advised the nursing supervisor at about midnight that a court order was required.
Pirolli testified that Licorice called him late on the night of April 26, 1980. He was informed that Jeffrey was on life support systems and that the family had requested that they be discontinued. He was told that Jeffrey was found to be clinically brain dead. He was asked what procedure should be followed. He assumed that although physicians had found Jeffrey to be brain dead, no physician was willing to pronounce death and sign a death certificate. After consulting with the hospital's legal adviser, Edward Sullivan, he advised Licorice that a court order was required. Even though the hospital has a procedure for convening a Prognosis Committee upon a physician's request, to assist such physician who for medical or ethical reasons may be reluctant or unwilling to pronounce death and sign a death certificate in the case of a brain dead patient, Pirolli did not convene a Prognosis Committee in this
case because the request to discontinue the life support systems came from the parents rather than a physician. He took the position that the decision as to whether and when to remove life support systems is a medical decision which only physicians can make and that the hospital could not tell physicians how to practice their profession. He did not think that a release or consent form was necessary or required. The form used when organs are donated contains a consent to donate organs and not a consent to remove the life support systems. He testified that he spoke with Sullivan again on Monday, April 28, who advised him that with a proper release signed by plaintiffs, the life support systems could be turned off by Dr. Weinstein, another associate of Dr. Cohen.
Edward Sullivan, general counsel for defendant-hospital, testified that he advised the hospital administrator and the nurses that the decision to turn off the life support systems should be made only by a physician because that was a medical decision which only a physician could make. The hospital administrator called him late on the evening or night of April 26, 1980 and advised him that Jeffrey was clinically brain dead and asked whether the life support systems could be turned off as requested by the family. Sullivan insisted that the hospital "run EEG's until we have a clear understanding of what the boy's condition is and on Monday discuss further what to do and if necessary call the Prognosis Committee together." An EEG which had been requested on April 25 had not been done by the night of April 26. Sullivan advised that a court order be obtained if the family's wish that the life support systems be removed was to be followed before two EEG's were performed 24 hours apart to confirm irreversible brain death. The need for a court order was suggested as an alternative to a medical decision to turn off the life support systems. Sullivan felt that two EEG's would be required by either a court or a Prognosis Committee. He therefore directed the medical director to run two EEG's 24 hours apart to confirm brain death. These were performed on April 27 and April 28 and they confirmed the
clinical diagnosis of brain death. The court order became unnecessary when Dr. Weinstein agreed to remove Jeffrey from life support systems and sign the death certificate on April 28, 1980, if a release was signed by plaintiffs.
The hospital records disclose that on April 28, at 9:40 a.m., Dr. Weinstein examined Jeffrey and found no evidence of brain function. He, too, agreed that Jeffrey was brain dead. This was confirmed by the EEG's taken on April 27 and 28. At 2:00 p.m. the same day, Dr. Weinstein noted in the hospital chart, "patient officially brain dead and by hospital regulations we may discontinue respirator c [with] family's permission." At 2:30 p.m. the plaintiffs were asked to come to the hospital. Upon their arrival, they were told that the respirator would be turned off after they signed a release. Plaintiffs signed a release prepared by Sullivan at the request of Dr. Weinstein. The release stated:
We have been advised by the attending physicians of our son, Jeffrey Strachan, that he has been declared "brain death." It is therefore requested that all life support -- life-support-death devices be discontinued as soon as possible.
In making this request we are fully aware of our legal responsibilities and further hold harmless John F. Kennedy Memorial Hospital and the attending physicians with regard to discontinuance of life support devices.
At 4:05 p.m., the life support systems were disconnected by Dr. Weinstein. At that time Jeffrey had no spontaneous respiration. Dr. Santoro made the pronouncement of death and executed a death certificate. Shortly thereafter, plaintiffs were advised that Jeffrey had been pronounced dead and that the body could be claimed for burial. The body was claimed almost immediately.
Plaintiffs testified that the delay between Saturday and Monday regarding the turning off of life support systems caused them additional emotional distress. They had seen their son on the respirator for this additional time. They, however, received no medical treatment for their emotional stress.
Plaintiffs called Dr. Jerene Robbins as their expert witness. Dr. Robbins, a certified thoracic surgeon, was licensed to practice
medicine in 1949. Significantly, she has never been the hospital administrator of an acute care hospital. At the time of her court appearance, she was the administrator of B.S. Pollack Hospital in Jersey City, which is a geriatric long term care facility/nursing home. Dr. Robbins has worked in an acute care hospital as a physician. At trial she gave her opinion regarding the proper procedure to be followed in cases in which a patient is declared to be brain dead. She stated that hospital personnel should first obtain releases signed by the family for removal of any life support systems. Then once a physician declares a patient to be brain dead, a progress note should be written and the physician should certify the death. The hospital staff should then remove the intravenous tubings, the respirator and other intubation; the machines should be shut off; and the body should be wrapped in a shroud and taken to the morgue.
According to Dr. Robbins, it is the responsibility of the hospital administrator to have forms available in advance at an acute care hospital for any kind of permission whether it involves a surgical procedure or bloodless invasion of the body. She stated that an acute care hospital which solicits or permits solicitation for donation of organs, should have forms available to cover all aspects of a donation program. Dr. Robbins also testified that there was no need for a court order. She opined that the failure to turn off the life support systems for more than two days after such request was made had had a destructive, agonizing effect on the plaintiffs. Finally, Dr. Robbins agreed that the hospital administrator should not make medical decisions. It was her opinion that the decision whether to remove a patient from life support systems was not a medical decision but rather, an agreement between the doctor and the family. She agreed that the hospital should not become involved in the decision whether the life support systems should be removed, but stated that the hospital should supply the necessary forms to record and effectuate the agreements
reached between the doctor and the family or doctor and the patient.
Dr. Cohen was called as a witness by defendants. He was the only physician to testify who had diagnosed brain death. He testified that had both parents stated to him on April 25, 1980, that they would not donate Jeffrey's organs, he "would have signed the death certificate and pulled the life support systems because I personally do not believe that there is any point to using life support systems under the circumstances in the face of brain death unless there is a donation that's being considered." Dr. Cohen also stated that although he thought he had the right to remove Jeffrey from life support systems under the circumstances, he was not obligated to do so. He testified that, "I have a right to have my own moral feelings as does Dr. Weinstein and Dr. Venkat, or any person as to whether they are willing to "pull the plug." He indicated that the decision on whether to "pull the plug" is a medical, legal and moral decision which does not require approval by a hospital administration or administrator. He said that he did not regard consent from the next of kin as a legal necessity before "pulling the plug," but stated that "it would be morally right and proper to give the parents the right to say yes or no in writing." Dr. Cohen stated that he does not ask hospitals for any forms for removal of life support systems because
the hospital administration and the hospital administrators are not physicians and have no right whatsoever to become involved in a medical matter like that. He is a business administration major. He does not have an M.D. or D.O.; has never seen the inside of a medical school. This is an issue between the next of kin and me. It's a medical matter; it's not a business matter. Life and death isn't business, it's medicine.
The case was submitted to the jury with special interrogatories, which asked:
1. (a) "Did defendant, Augustine R. Pirolli, have a duty to have procedures in place for the removal of Jeffrey Strachan from the life support systems when requested by his parents, and willfully and wantonly fail to do so, as alleged by the plaintiffs?" The answer was no.
2. (a) "Did the defendant, Augustine R. Pirolli, have a duty to have procedures in place for the removal of Jeffrey Strachan from the life support systems when requested by his parents, and negligently failed to do so, as alleged by the plaintiffs?" The answer was yes.
2. (b) "Was this failure a proximate cause of the infliction of additional severe emotional stress upon the plaintiffs?" The answer was yes.
3. (a) "Did the defendant, Augustine R. Pirolli, willfully and wantonly hold the body of Jeffrey Strachan so as to prevent his proper burial?" The answer was no.
4. (a) "Did the defendant Augustine R. Pirolli, negligently hold the body of Jeffrey Strachan so as to prevent his proper burial?" The answer was yes.
The jury awarded each plaintiff $35,000 for each of the two causes of action for a total sum of $140,000.
First, we focus on defendants' argument that the counts of the complaint that alleged wrongful withholding of a dead body should have been dismissed as matter of law. In order to answer this contention, we must decide whether there was a dead body before the life support systems were disconnected. The theory of an alleged wrongful withholding of a dead body is based upon an unjustified interference with a quasi property right. The early common law refused to recognize a concept of property rights in the body of a deceased person. Petition of Sheffield Farms Co., 22 N.J. 548, 555 (1956). Now the prevailing view in New Jersey is "that the right to bury the dead and preserve the remains is a quasi right in property, the infringement of which may be redressed by an action in damages." Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 93 (Sup.Ct.1936). This quasi right in property of the family to bury the
dead and intern the remains has been discussed more recently in Muniz v. United Hsps. Med. Ctr. Pres. Hsp., 153 N.J. Super. 79, 82 (App.Div.1977). See also 4 Restatement, Torts 2d, § 868 at 274 (1977).
The profound moral conundrum which engulfs this case was eloquently articulated in Matter of Conroy, 98 N.J. 321, 343 (1985):
As scientific advances make it possible for us to live longer than ever before, even when most of our physical and mental capacities have been irrevocably lost, patients and their families are increasingly asserting a right to die a natural death without undue dependence on medical technology or unnecessarily protracted agony -- in short, a right to 'die with dignity.' On the other hand, all persons have a fundamental right to expect that their lives will not be foreshortened against their will. The President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, an interdisciplinary group of ethicists, lawyers, doctors, theologians, and others established by Congress in 1978 to propose guidelines for resolving these and similar issues, stated the problem this way: 'Once someone realizes that the time and manner of death are substantially under the control of medical science, he or she wants to be protected against decisions that make death too easy and quick as well as from those that make it too agonizing and prolonged.' President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 23 (1983) [hereinafter cited as President's Commission Report ].
Before the case was submitted to the jury, defense counsel urged the judge to dismiss the cause of action for withholding or mishandling Jeffrey's dead body because Jeffrey was not dead inasmuch as his heart was still beating and he continued breathing until the life support systems were disconnected. The traditional understanding of death has been that it is manifested by irreversible cessation of spontaneous cardiopulmonary functions. See In re Quinlan, 70 N.J. 10, 27 (1976). But "[t]he ever more sophisticated capabilities developed by biomedical practitioners during the past quarter century to support or supplant certain vital functions [such as cardiopulmonary] have created problems in diagnosing death." President's Commission Report, Defining Death at 21 (1981). A person may be artificially supported for respiration and circulation after all brain functions have ceased irreversibly. In re
Quinlan, supra, 70 N.J. at 27. Consequently, the traditional definition of death may no longer be desirable or workable.
The Uniform Determination of Death Act, approved by the National Conference of Commissioners on Uniform State Laws in 1980, which was recommended by the President's Commission Report, has been adopted by at least 14 states, but New Jersey is not one of them. Section 1 (page 271) of that Act provides: "An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards." The New Jersey State Senate has proposed to adopt the Act. See Senate Bill 1050, introduced on January 23, 1984. This bill died on the last day of the Legislative session. On November 12, 1985, Governor Kean signed into law Assembly Bill 3316 which created the "New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care" to provide a comprehensive examination of the impact of advancing technology on health care decisions including termination of life support systems. L. 1985, c. 363.
In In re Quinlan, supra, 70 N.J. at 27 although the patient was not brain dead, our Supreme Court seemingly approved the standards delineated by the Ad Hoc Committee of the Harvard Medical School in 1968 for a declaration of death and removal of a respirator. Those standards generally provide that a patient who is clinically brain dead and has flat or isoelectric EEG's repeated 24 hours apart unless massive brain damage is visualized, may be declared dead only by a physician. "Death is to be declared and then the respirator turned off. The decision to do this and the responsibility for it are to be taken by the physician in-charge, in consultation with one or more physicians who have been directly involved in the case. . . ." In re Quinlan, supra, 70 N.J. at 28.
The facts are undisputed in the present case that no attending or examining physician declared death, made such an entry onto the hospital chart or signed a certificate of death prior to the afternoon of April 28 when the life support systems were disconnected. We are therefore persuaded that the quasi right in property of the next of kin to claim a dead body for burial did not vest until the pronouncement of death was made by Dr. Santoro at approximately 4:10 p.m. on April 28, 1980, at which time the death certificate was executed in accordance with N.J.S.A. 26:6-7. Before the life support systems were disconnected, there was no dead body to be claimed for burial within the meaning of Spiegel. See also 4 Restatement, Torts 2d, § 868 at 274 (1977). Not until then was there a dead body ready for burial or disposition by a funeral director even though death could have been declared before the respirator was turned off. See Matter of Conroy, supra, 98 N.J. at 356-357, n. 3. The plaintiffs were notified almost immediately after the pronouncement of death that they could claim the body. They did in fact claim the body then. In these circumstances, there was no actionable wrongdoing associated with withholding or mishandling the dead body.*fn1
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ON BYSTANDERS
A. WAS THERE A DUTY OWED BY DEFENDANTS?
Defendants contend that the alleged negligent infliction of emotional distress should have been dismissed because there was no duty to have a procedure for turning off the life support
systems or to have consent forms available. Defendants argue that the family's written consent was unnecessary and that the decision to withdraw the life support systems was a medical decision. Plaintiffs have not contended that defendants breached any duty owed to Jeffrey by placing him on the life support systems or that the treatment administered caused Jeffrey any harm. Nor have plaintiffs contended that defendants acted improperly by participating in the request for donation of organs. Similarly, plaintiffs have not contended that the appearance of Jeffrey on the life support systems after their request to disconnect the respirator was any different than before the request was made. In other words, Jeffrey looked the same before and after the request. The basis for the award of $140,000 is the alleged increased emotional distress inflicted by defendants for not having procedures in place to disconnect the respirator and for not having consent forms available.
In connection with plaintiffs' claim that the hospital and its administrator had a duty to have consent forms available or to have other procedures in place for turning off life support systems upon their request, we observe that plaintiffs have not sought to hold the hospital vicariously liable for the possible negligence of any of the doctors. Vicarious liability was alleged only with respect to the hospital and hospital administrator. Therefore, any possible breach of duty on the part of any attending physician in not turning off the life support systems upon the request of plaintiffs cannot be imputed to the defendants. Moreover, we are not called upon to decide whether any doctor was negligent.
"Before recovery may be had, a duty must exist in law and a failure in that duty must be proved as a fact." Mergel v. Colgate-Palmolive-Peet Co., 41 N.J. Super. 372, 379 (App.Div.), certif. den. 22 N.J. 453 (1956). Whether a duty exists is a matter of law to be decided by the Court, not the jury. Essex v. New Jersey Bell Telephone Co., 166 N.J. Super. 124, 127 (App.Div.1979); McKinley v. Slenderella Systems of Camden, N.J.,
Inc., 63 N.J. Super. 571, 581 (App.Div.1960); McIntosh v. Milano, 168 N.J. Super. 466, 495 (Law Div.1979). "A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition in effect, to conform to a particular standard of conduct toward another." Prosser and Keeton, The Law of Torts (5th ed.1984), para. 53 at 356. See also 2 Harper and James, The Law of Torts, para. 18.1 at 1015 (1956) and 1 Restatement, Torts 2d, para. 4 at 7 (1965). "[N]egligence does not exist in the ...